Courting gridlock

February 1, 2013 7:15 pm

In the war between politics-induced gridlock and fair, efficient government, gridlock just won a round.

Conservatives are cheering a ruling Friday from the U.S. Court of Appeals for the District of Columbia Circuit that invalidates three appointments President Barack Obama made to the National Labor Relations Board last year.

We doubt they will champion the court’s reasoning the next time intransigence and inefficiency in the Senate prevent a Republican president from staffing the government. Manipulating the appointment process is a betrayal of senatorial duty that both parties have engaged in to gain short-term advantage, and the court’s logic would give them a lot more power to do so.

At issue is the president’s constitutional power to appoint officers of the government temporarily and without Senate confirmation when the chamber is in recess. Presidents of both parties have exercised this authority for decades. President George W. Bush made more than 170 recess appointments in his eight years in the White House.

There is good reason why presidents have used, and Senates have acquiesced to, this procedure. In an era when senators abuse the filibuster, government agencies regularly operate without leadership and federal judgeships often remain unoccupied, both despite qualified nominees.

In parsing the constitutional language, though, the court practically read the recess-appointment power out of existence. The judges relied on their construal of what the Founders intended the Constitution’s words to mean, but they produced a radical transfer of power from the executive to blocking minorities in the Senate.

Whichever court hears this case next — it could be the full D.C. Circuit or the Supreme Court — should reject the decision.